R. v. Pipping, 2020 BCCA 104
[28] Another recent case provides further guidance on this point. In R. v. Yu, 2019 ONCA 942, the Ontario Court of Appeal overturned the finding of the trial judge that the accused did not have a reasonable expectation of privacy in the common areas of two multi‑unit buildings. In Yu, the police accessed the common areas of several condominium buildings without warrants in order to conduct surveillance. Most of the warrantless entries involved the police accessing underground parking garages, but the police also accessed hallways and stairwells on several occasions.
[29] In Yu, Tulloch J.A. held that the accused did not have a reasonable expectation of privacy in the parking garages of the buildings because the garages were large and the appellants had limited control over them. With respect to the existence of a reasonable expectation of privacy in the hallways, however, Tulloch J.A. wrote:
[81] The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.
[82] Once inside an access‑controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
[83] The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
[84] Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less‑frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.
…
[87] On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at [one of the buildings] barred non‑owners and non‑occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. At [one of the buildings], security cameras are installed in the lobby, the ramp to the parking garage, at the elevator lobby, and in the elevators – but not in the hallways outside units. The appellants had some limited reasonable expectation of privacy in those areas.
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[89] However, the appellants’ reasonable expectation of privacy in these areas was low. Both condominium buildings in this case were much larger than the ten‑unit building in White. Each had over 300 units. The police observations in this case – the subject matter of the search – were also narrower. Unlike in White, the officers did not make or attempt to make any observations about things happening within the units or enter private areas such as storage lockers.
[30] In my view, Edwards, Webster, White and Yu are consistent in their focus on the manner in which the control of public access to the common areas of a building is key to the assessment of a reasonable expectation of privacy. The focus is on “the ability to regulate access, including the right to admit or exclude others from the place”: Edwards at para. 45 as cited in White at para. 31. Other important factors include the exclusivity of occupation, the size of the building, whether property management or a condominium board has consented to the police presence, the breadth of the observations being made by the police, the ownership of the property, and the frequency with which a particular area is used.
[31] The important facts in the case before me include the property manager’s refusal to grant the police access to the building without a warrant, the secured access to the building, the lack of video surveillance, that unit 407 is at the end of a hallway, and the narrow breadth of the observations made by the police. In my view, the facts of this case are more similar to White and Yu than Webster.
[32] The application of the legal test for establishing a reasonable expectation of privacy to the facts of the case is a question of law, reviewable on a standard of correctness: R. v. Felger, 2014 BCCA 34, leave ref’d (2014) SCC Docket 35795, at para. 30. In my view, the judge was correct to find that the occupants of the building reasonably expected that entry to the building would be limited to invitees and otherwise members of the public would be excluded.
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